Claim filed against CalTrans and CHP for arrest of TWN photographer

An unlimited civil claim was filed this month against CalTrans and the California Highway Patrol for actions leading up to and including the arrest in July of ‘The Willits News' photographer Steve Eberhard. Eberhard was arrested while attempting to photograph Willits bypass protesters. The claim was filed on behalf of Eberhard by the law offices of Jassy Vick Carolan LLP. While CalTrans and the CHP have the opportunity to settle the claim without court proceedings, it would be quite unusual for this to occur. The claim also states the facts of the case "give rise to several federal civil rights claims for damages and injunctive and declaratory relief." Eberhard was the only person physically arrested on July 23 as he attempted to photograph two protestors chained to construction equipment at a bypass construction site. Those chained to the equipment were cited and released and the 10 or more protesters who participated in the protest within the construction zone were neither cited nor arrested. As clearly seen in an amateur video taken at the time, Eberhard arrived at the protest site about 40 minutes after the protest began. Eberhard and the CHP arrest report agree that Eberhard approached the closest CHP officer, told him he was a photojournalist, that he had called for a CalTrans escort and left a message and that he wanted to take photos of the two persons chained to the equipment. Within 43 seconds of Eberhard greeting and shaking hands with the officer he is being cuffed, as evidenced by the video. CHP officers confiscated the journalist's cameras and cell phone as "evidence" despite state and federal laws protecting against seizure of newsgathering materials--even with a warrant. The cameras were taken separately to the CHP offices in Ukiah and held until later in the day. After the arrest, Eberhard, a 65-year-old Vietnam War veteran who has had four shoulder surgeries, was handcuffed tightly behind his back and placed in a patrol car for an extended period. Eberhard told one of the arresting officers about the pain from his shoulder injury and the officer told him "you should have thought of that before you walked into here," according to Eberhard. Some time later, after Eberhard spoke with a CHP sergeant about his shoulder injury, the arresting officers removed Eberhard from the squad car and re-cuffed him more loosely before returning him to the car. The Mendocino County District Attorney's Office found insufficient evidence to charge Eberhard with any crime and refused to prosecute. The claim states officers “(Christopher W.) Dabbs and (Kory) Reynolds arrested Eberhard without a warrant, without reason to believe he violated any law and without any other legal justification.”This arrest followed months of intimidation and threats by CHP officers towards Eberhard, as detailed in the claim. “This is the kind of behavior that happens in third world countries, not California,” says James Ewert, general counsel for the California Newspaper Publishers AssociationAfter Eberhard's arrest CalTrans and the CHP changed local policies to provide access for ‘The Willits News' and other media to newsworthy events along the bypass route, even during inconvenient hours.California trespass law excludes those conducting constitutionally protected activities, such as newsgathering, when the individual is not interfering with the lawful enjoyment of the owner's property rights. CalTrans has claimed from the beginning its reasons for limiting ‘The Willits News' journalists from the disputed work site were aimed at protecting the safety of the journalists. "As a photojournalist for The Willits News it was my job to document the Willits bypass construction and protests over the construction in a fair and impartial way," says Eberhard in a prepared statement. "The Willits bypass is highly controversial and many people in the area want to know what is going on. I am credentialed with The Willits News press pass and a Mendocino County Sheriff's press pass. Practically anywhere else this allows me to cross police lines. There was no confusion on the part of the two CHP officers who arrested me in the early morning of July 23, 2013. They knew my role as a photojournalist. Some CHP officers implemented intimidation toward me as a normal practice for several months. My motivation in filing the suit is to protect the First Amendment of the U.S. Constitution."In the months leading up to the arrest, the claim includes actions taken by specific CHP officers who allegedly targeted ‘The Willits News' photojournalist Eberhard with threats of arrest and other forms of intimidation. In one instance CHP Officer Teddy Babcock is alleged to have committed assault and battery against Eberhard, even though Eberhard was being escorted by CalTrans personnel at the time.The CHP did not limit its scope of enforcement during this period to posted CalTrans property, at times expanding enforcement of exclusion zones to include county, city and non-posted state property. Communication between the two agencies were frequently confused, as at times no one seemed to be setting policy, with some CHP officers stating it was CalTrans orders prohibiting press access and CalTrans representatives stating access was CHP's “call.” CHP also did not have a consistent worksite protocol, with some officers allowing press presence and others forbidding it. The claim also calls into question the "concerted effort between CHP and CalTrans to falsely represent the facts of the arrest in the press and to falsely portray Eberhard within his own journalistic community as a protester in order to destroy his credibility as a neutral fact gatherer in retaliation for and to chill the exercise of his state and federal constitutional rights."The state and federal constitution gives journalists the "rights to gather news for dissemination to the public on important matters of public interest, to photograph peace officers in the performance of their duties," according to the claim. Establishing that a person is physically on state property does not, by itself, establish the crime of trespassing. Violating the trespassing statute, cited by the officers in Eberhard's arrest report, requires "entering any lands...for the purpose of injuring any property or property rights or with the intention of interfering with, obstructing, or injuring any lawful business or occupation carried on by the owner of the land.”While the officers cited and released the two persons actually chained to equipment and causing a work stoppage, the arrest report, prepared by Dabbs and approved by CHP Sgt. Braden Moffett, stated Eberhard was not cited and released because he "would be reasonably likely to continue the offense or offenses, or the safety of persons or property would be imminently endangered if immediately released." In Dabbs report he stated Officer Reynolds, knew Eberhard was a member of the media, and arrested him under the trespassing statute. On August 28, CHP Northern Division Chief Bridgett T. Lott contradicted the CHP arrest report, video evidence, on-site interviews with witnesses and Eberhard's statement of events by claiming in a letter to the Society of Environmental Journalists that Eberhard had been "originally acting as part of a group of protesters, when all other protesters had left the site as requested, Mr. Eberhard remained." The claim states," these statements were false and known to be false when stated but nevertheless were published for the purpose of further intimidating and chilling the exercise of Eberhard's state and federal constitutional speech rights and in further retaliation for his legitimate newsgathering activities, including photographing peace officers in the performance of their duties on numerous prior occasions."